Condurso v. Thumsuden
| Decision Date | 23 November 1981 |
| Citation | 444 N.Y.S.2d 151,84 A.D.2d 802 |
| Parties | Anthony J. CONDURSO et al., Respondents, v. Paul J. THUMSUDEN et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., Mineola, of counsel), for appellants.
Lipsig, Sullivan & Liapakis, New York City (Edgar T. Schleider, New York City, of counsel), for respondents.
Before HOPKINS, J. P., and GIBBONS, RABIN and COHALAN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Suffolk County, dated March 19, 1981, which granted plaintiffs' motion to vacate a prior order of dismissal and to restore the case to the trial calendar.
Order reversed, on the law, with $50 costs and disbursements, and motion denied.
This is an action to recover damages, inter alia, for personal injuries sustained by plaintiff Anthony Condurso in an automobile accident which occurred on March 8, 1975. Joann Condurso seeks damages for loss of consortium.
The summons and complaint were served on or about April 9, 1975. On February 7, 1977 the case appeared on the calendar for pretrial conference. The case was marked off the calendar due to the failure of plaintiffs' counsel to appear at the conference. No attempt was made to restore the action to the calendar, and, on January 17, 1980, the action was dismissed pursuant to CPLR 3404. A judgment dismissing the action was entered on January 30, 1980.
On January 16, 1981, the plaintiffs moved to vacate the order of dismissal and restore the case to the trial calendar. In support of the motion it was asserted that plaintiffs' counsel had not been notified, by postcard, of the scheduled pretrial conference. Moreover, correspondence between the attorneys which took place after the case was marked "off" the calendar (letters dated September 14, 1977 and January 9, 1978) demonstrated that neither party considered the action abandoned. Included in plaintiffs' motion papers was an affidavit of merit signed by plaintiff Anthony Condurso. The motion was granted, over defendants' opposition, and the instant appeal ensued.
CPLR 3404 provides:
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